The Sports Blawg with the Fordham Sports Law Forum

Pennsylvania Governor Tom Corbett is not going to take the NCAA’s unprecedented sanctions against Penn State lying down.

In January, Corbett filed a federal antitrust lawsuit against the governing body of college athletics, protesting the heavy sanctions levied against Penn State’s football program in the wake of the Jerry Sandusky scandal. According to the complaint, those sanctions – including a four-year postseason ban, the elimination of available scholarships, a vacating of all victories since 1997, and a $60 million fine – were unfairly “piled on” to the school without the NCAA ever disclosing an actual rule that Penn State had broken. Although Corbett signed the consent decree accepting those sanctions in July 2012, Corbett’s lawsuit states that he had no choice but to do so in order to avoid the death penalty for Nittany Lions football. The lawsuit also contends that the extraordinary sanctions were clear evidence of institutional overreach by the NCAA. When the organization flatly denied Corbett’s allegations, the governor swiftly passed a law mandating that every penny of the $60 million paid by Penn State be spent on child welfare agencies only within the state of Pennsylvania.

Outraged, the NCAA snapped into action just hours later, suing Corbett in federal court to strike down the law as both unconstitutional and a breach of the consent decree signed months ago. “State governments can’t simply rewrite private agreements and divert private money to their own coffers…The state has attempted to grant itself the ability to do whatever it wants to whomever it wants,” fumed chief legal officer Donald Remy. The NCAA had already appointed a task force to appropriate the money to victims of child sexual abuse nationwide, and it pushed back against Corbett’s legislation as both an attempt to interfere with interstate commerce and a violation of the Takings Clause of the Fifth Amendment. Time will tell how the court will rule on the issue, but as the $12 million already paid into escrow by Penn State sits untouched, both sides will try every avenue to find a way to control the money’s distribution. Penn State, for its part, has refused to sign on to the lawsuit, indicating possible fear that involvement in the matter would result in an even higher penalty.

So, what should we make of all of this? Yes, the Sandusky issue was–to put it mildly–mishandled by Penn State and Pennsylvania lawmakers. And Corbett probably should have made his objections to the sanctions known when he negotiated the consent decree in July. But is it possible that the unparalleled sanctions handed down in the wake of the scandal actually constituted NCAA overreach? Facing intense public scrutiny and the possibility of the complete elimination of the school’s football program, Corbett and the school genuinely had their backs against the wall. It seems unsettling, to say the least, to allow a single governing body with a burgeoning track record of investigative mistakes (here’s looking at you, Miami) to use coercion to unilaterally impose such a crippling punishment. Further, Corbett is not trying to duck responsibility for the Sandusky crisis, but merely attempting to manage the consequences. The $60 million at issue comes from an infraction that impacted a state school and a community; it seems fair that the NCAA should at least consider the possibility of allowing the money to go towards the area and people most directly affected. Even if the law passed by Corbett could be constitutionally problematic, the NCAA should at the very least take this as a sign to start working on a constructive plan to manage the aftermath of the Penn State sanctions. The organization’s goal shouldn’t simply be to break down the Nittany Lions, but also to rebuild a more positive program for a major member school.

And as this type of back-and-forth litigation drags on, particularly with thorny allegations of unconstitutional conduct, who suffers? The victims of child sexual abuse – both in Pennsylvania and nationwide – who remain unable to access a life-changing source of funding. The Sandusky scandal was a wake-up call to a devastating problem, but by bickering over who gets to spend the money, both the NCAA and Corbett are failing in their ostensible mission to help other victims. While it could be high time for member schools and their affiliates to take a stand against NCAA overreach, dramatic court battles delay the disbursement of funds that could both aid current child victims and help to prevent another Sandusky crisis. No matter who winds up on top in the dispute, we should hope that either the courts or the parties themselves arrive at a prompt agreement.

Lindsay Colvin

Lindsay Colvin is a first year student at Fordham University School of Law. She graduated from Union College, magna cum laude, in 2010. Lindsay played four years of varsity softball at Union and served on the school’s Athletics Committee.

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